Doctrină

Unfair Contract Terms Directive, Article 1

This paper aims to briefly analyse the current influence of law on the contract, in terms of the phrase “Public norm versus private norm”. According to art. 1270 para. 1 of the Civil Code, “The valid contract concluded has the force of law between the contracting parties”. Thus, the contract is the law of the parties (private rule) and is subject to the mandatory provisions of the law (public rule). In the above context, I posed two rhetorical questions: 1) Can we still talk about an autonomous contractual will? 2) Are we witnessing the decline of the binding force of the contract? The principle of autonomy of will has been replaced by the principle of limited contractual freedom, according to which “The parties are free to conclude any contracts, but within the limits imposed by law, public order and morals”. The most disputed civil law institutions in the matter are contingency and unfair terms. The modern period is characterised by the decline of the binding force of the contract and the diminishing role of the will of the subjects before the law. The paper is structured in four parts: “Mandatory rule of law”, “Contract: binding force inter parties and relative effects”, “Limitation of the binding force of the contract. Foresight and abusive clauses“ and ”The public norm versus the private norm. The decline of the binding force of the contract?”.